AVASARALA VENKATARAMA ROW Vs. MAHARAJA OF PITTAPURANA

JUDGEMENT

(1.) This second appeal arises out of a suit filed by the Maharaja of Pittapuram against the Secretary of State for India in Council as the 1 defendant, and Avasarala Venkatarama Row of Panduru as the 2nd defendant, for separate registration of the lands situated in the village of Panduru alleged to be within the zemindari of Pittapuram. Prior to the suit, the plaintiff applied to the Deputy Collector under the provisions of Madras Act I of 1876 for such separate registration. The 2nd defendant having raised an objection, the Deputy Collector declined to order separate registration, with the result that the Maharaja of Pittapuram filed the suit from which this second appeal has arisen.

(2.) The main pleas raised by the 2nd defendant were (1) that there was no "alienation" in the present case within the meaning of Act I of 1876, and (2) that, on the merits, the plaintiff was not entitled to separate registration since these lands were not included within the assets of the zemindari at the time of the Permanent Settlement. Both the Lower Courts overruled the first contention raised by the 2nd defendant and held that, if on the merits the plaintiff proved that the suit lands were included within the assets of the zemindari, the plaintiff would be entitled to have separate registration as prayed for. On the merits the Trial Court found against the plaintiff and accordingly dismissed the suit. On the plaintiff's appeal, the learned Subordinate Judge held, for reasons given in para graph 10 of his judgment, that the suit lands must be taken to have been included in the assets of the zemindari, and he passed a decree for separate registration as prayed by the plaintiff. This second appeal has accordingly been preferred by the 2nd defendant in the case.

(3.) On his behalf, his learned Advocate argued two points, one relating to the preliminary question whether Act I of 1876 applies to this case and the other to the merits. Taking the first question about the applicability of the provisions of Act: I of 1876, it was argued for the appellant that the Act deals only with cases of lands "alienated by sale or otherwise". It being common ground that the Maharaja is not able to point out to any particular act of alienation inter vivos the finding of the Lower Appellate Court was that the 2nd defendant has acquired ownership of this property by virtue of adverse pos-session for over the statutory period. The learned. Advocate argued that such a case could not be said to come within Act 1 of 1876. He argued that the words "alienation by sale or otherwise" imply cases of transfer inter vivos. On behalf of the respondent it was argued that the word "alienation" is wider than the word "transfer" and that all that the Act contemplates. is that there should be a separation from the main estate of the land in question in such a way that the ownership of the land in question becomes vested in the other person as owner. We think that the contention raised by the respondent should be upheld. It must be noticed that the wording in question occurs in an Act passed as early as 1876, and that the exact question that we are now called upon to decide has come before this Court, at least twice, as reported cases show. In Pusarla Peda Brahmaji V/s. Krishnamachariar (1919) 11 L.W. 389 Oldfield and Krishnan, JJ., decided this very point against the contention raised by the appellant before us. Later on, in the case reported in Subba Rao V/s. Rajah of Pithapur (1926) 53 M.L.J. 400 the same question arose before Waller and Madhavan Nair, JJ., and the learned Judges, as we understand their judgment, followed the decision in Pusarla Peda Brahmaji V/s. Krishnamachariar (1919) 11 L.W. 389 and were not prepared to have the question re-opened. If the learned Judges in Subba Rao V/s. Rajah of Pithapur (1926) 53 M.L.J. 400 doubted the correctness of the decision in Pusarla Peda Brahmaji V/s. Krishnamachariar (1919) 11 L.W. 389 they would not have sent the case back for enquiry on the merits (which would have been unnecessary if the appellant's contention was right). In addition to the two direct decisions on the point in question, there is also an observation in Proprietor of Siripuram Estates V/s. V enkatasurya Rao (1922) 17 L.W. 6 where it is stated that all that was necessary to bring a case under Madras Act I of 1876 is that the land in question should be fully owned by a person other than the Zamindar Proprietor. Though the preamble to the Act speaks of "alienation of portions of permanently settled estates by sale or otherwise" when we go to Section 2, which speaks of the exact nature of the enquiry to be conducted by the Collector, we find the following words: The Collector shall thereupon hold an enquiry as to who is the present owner of the property in respect of which the application is made.